Article 7 - Respect for private and family life
Article 8 - Protection of personal data
Article 11 - Freedom of expression and information
Article 52 - Scope and interpretation
Key facts of the case:
In October 2019, an Instagram account was set up which posted ‘coarse and vulgar’ content about the staff and students of a secondary school in Limerick. While Facebook (who operates Instagram) rapidly removed the offending content at request of the school, the school further requested that Facebook reveal the names of the users of the account and sought a court order to that effect.
It is not uncommon to grant this type of disclosure order, including with regard to social media accounts, where there is evidence of wrongdoing, and the information is sought in order to institute legal proceedings against the disclosed individual. However, the striking feature of this case is that the school sought disclosure not for legal proceedings, but to ‘deal with’ the individuals behind the account with a ‘disciplinary or pastoral response’.
Key legal question raised by the Court:
The Charter gives rights to privacy, protection of personal data and a right to freedom of expression. Any limitation must be proportionate and must meet objectives of general interest or the need to protect the rights and freedoms of others. While evidence of wrongdoing and intent to pursue legal proceedings is clearly established as fulfilling the public interest criteria, there is no legal precedent for disclosure in order to allow a school to enforce its disciplinary procedure, giving rise to a two-fold question – whether the rights in the Charter give the right to post information anonymously on the Internet (absent any public interest criteria) and whether the public interest criteria are met in the case of a school imposing its own internal disciplinary proceedings?
Outcome of the case:
The court proposed to refer the case to the CJEU to seek clarify on these points. However, following the High Court ruling, the secondary school in question chose to withdraw their legal action, rendering the CJEU appeal moot.
55) The starting point for consideration of these issues is the Charter of Fundamental Rights of the European Union (“the Charter”). The Charter confers a right to privacy, a right to the protection of personal data and a right to freedom of expression. Article 52 provides that any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
72) It is apparent from Article 6(1)(c) of the GDPR that domestic legislative measures which impose “legal obligations” on a data controller must meet an objective of public interest and be proportionate to the legitimate aim pursued. The domestic legislative measures must also comply with the requirements of the Charter. It follows that, in interpreting sections 41 and 47 of the Data Protection Act 2018, this court should, insofar as possible, do so in a manner which is consistent with the GDPR and the Charter.
73) There is little doubt but that these domestic legislative provisions would allow for the making of disclosure orders in the context of prospective legal proceedings for defamation, provided of course that the intended plaintiff is able to establish, at the very least, a prima facie case of wrongdoing. This would appear to be consistent with the GDPR and the Charter. Any expectation of anonymity on the part of the account user would have to yield to the countervailing public interest in vindicating an individual’s right to their good name by way of proceedings for defamation. The imposition of a threshold requirement that an applicant must establish a prima facie case of wrongdoing ensures that the measure is proportionate and not open to abuse.
82) There is a respectable argument that similar principles may apply under EU law, and, in particular, under the Charter.
83) I propose to make a reference to the Court of Justice for a preliminary ruling pursuant to Article 267 of the TFEU. The issues to be addressed in the reference are as follows:
(1). Do the rights conferred under Article 7, Article 8 and Article 11 of the Charter of Fundamental Rights of the European Union imply a right, in principle, to post material anonymously on the internet (subject always to any countervailing objective of public interest)? If so, is this right qualified in the case of the students and staff of a secondary school?